The race is on to get capital murder convictions and the death penalty for the two Beltway sniper suspects, John Allen Muhammad and John Lee Malvo. Indeed, in a blatant case of the cart driving the horse, the jurisdiction for their trials was chosen with the “ultimate sentence” (in Attorney General John Ashcroft’s words) in mind.

By now, it seems certain that both will be tried in Virginia where, unlike Maryland or federal courts, juveniles can be sentenced to death.

Considerations of how the two can receive a fair trial have given way to a rush to execute as soon as possible. While this is unseemly enough, it is even more troubling for the system to be treating seventeen-year-old Malvo the same–indeed, even worse than–forty-two-year-old Muhammad.

Malvo is being held in an adult jail, albeit supposedly separate from the adult population. Like all states, Virginia has a procedure that allows a juvenile like Malvo to be charged and tried as an adult, though only after a proceeding before a juvenile court judge. This has not yet taken place.

Malvo, not Muhammad, is the one who was pressured to confess without access to his guardian or lawyer. He is the one who has been subject to leaks, even though juvenile criminal matters are supposed to be confidential.

He is the one whose confession is now public knowledge and likely to prejudice potential jurors. And he will likely continue to be prejudiced by a judge’s recent decision not to impose a gag order to prevent further, similar leaks.

In short, Malvo has not been afforded the protections even the law of Virginia gives to juvenile defendants. For all the prosecution’s invocation of “the law,” they sure don’t seem to be following it.

Malvo’s Interrogation: Taking Advantage of A Teenager’s Isolation

When Malvo was in federal custody, he was represented by two highly regarded attorneys, one a federal public defender. No doubt taking their advice, he remained silent in spite of law enforcement efforts to extract a confession. But when the federal government handed Malvo over to Fairfax County, Virginia, he was temporarily without an attorney.

There, cops and prosecutors took advantage — questioning Malvo for seven hours. Assuming press leaks have been accurate, Malvo confessed in detail to being not just the triggerman, but also even the mastermind of some aspects of the sniper spree.

During the interrogation, Malvo’s guardian ad litem (who had been appointed because Malvo’s parents were absent) had rushed to the jail and asked to be present at the interrogation. But the guardian was denied access and, indeed, ordered out of the facility.

The law is not settled as to whether a guardian has a right to be present during a juvenile’s interrogation, and this question will likely be a factor in a motion to suppress Malvo’s confession that is certain to be filed by his attorneys.

That motion will also likely question whether Malvo’s confession was voluntary. (Under the Fifth Amendment, a compelled confession is inadmissible as evidence in court.)

The Suppression Motion: Was Malvo’s Confession Voluntary?

The suppression motion will be critical to the outcome of the case in two important respects.

First, if the confession is admitted, it will likely destroy Malvo’s ability to take advantage of Virginia’s insanity or diminished capacity plea. Once a person has made a seemingly rational statement of events, such a plea is rarely successful. Then, the admitted confession will virtually ensure Malvo’s conviction.

What facts will the court consider in deciding whether to admit Malvo’s confession? Under the law, the court will be entitled to take the full relevant factual context — the “totality of circumstances” — into account. But, surprisingly, Malvo’s youth is one fact that probably will not play a prominent role.

In general, judicial decisions seem to draw little distinction between juvenile and adult confessions, unless the juveniles are very young indeed — under the age of 6 or 7 years old.

Moreover, these decisions fail to take into account what we know about juvenile and adolescent cognitive development. Adolescents’ less-than-mature brain development should be relevant to the decision to suppress their confessions (as well as to the decisions whether to try and punish them as adults).

Ironically, we are confident enough in adolescents’ immaturity to deny them alcohol, cigarettes, and the rights to own property, marry without parental permission, join the armed services, or vote. All of these constraints are predicated on adolescents’ inability to make important decisions for themselves.

But when it comes to criminal procedure and punishment — which addresses decisions that are far more momentous for the adolescent’s future — we pretend they are just as mature as adults in order to justify holding them as accountable as adults.

We ignore psychological reality in order to perpetuate a legal fiction.

Why Adolescents Are Especially Prone to Making False Confessions

An adolescent’s cognitive ability is especially ill suited to the situation of interrogation. If you doubt it, think of the difference between how the average forty-two-year-old you know, and the average seventeen-year-old you know, would each fare under police questioning–or even any hostile adult interrogation (say, by a boss, school principal, or teacher).

To begin, adolescents often tend to be egocentric, and to try to focus all attention on themselves. They often have a “personal fable” — an inflated, inaccurate self-image. They may believe they are invincible. They often make bad short-term decisions in the heat of the moment, ignoring the long-term consequences.

Moreover, as rebellious as adolescents are correctly reputed to be, there is a flip side: They are prone to hero-worship. And under the influence of strict, authoritarian, and sometimes-abusive parents, adolescents often cover for them, even taking the blame for their actions.

These psychological tendencies make a teenager more likely than an adult to falsely confess or to exaggerate his or her share of responsibility in a crime undertaken with an adult. Recall that the juveniles who confessed to a rape that took place in Central Park several years ago are now thought to have done so falsely. No physical evidence linked them to the crime and someone else–an adult–has confessed to acting alone.

Why Malvo’s Confession to Being the Sniper Mastermind Is Not Credible

Was the seventeen-year-old Malvo really as instrumental in planning and carrying out the murders, as he supposedly confessed?

Recall what reports say he was like before Muhammad took him under his wing: He was a homeless boy who desperately wanted a parent who cared about him. He was quiet and well behaved — even obsequious — and he had been a good student before he was kicked out of school for immigration reasons. (A non-citizen, he lacked papers to prove his status, and was turned over to the INS.)

Grateful for a father figure, Malvo was under Muhammad’s “spell,” according to numerous observers. Even when he was apparently ravenously hungry, he would not eat a sandwich without seeking permission from Muhammad — who insisted that Malvo stick to a strict diet (a blend of Islamic and Taoist restrictions).

Their close relationship may be relevant to Malvo’s reported willingness to take on so much of the responsibility for the shootings. Surely, his attorneys will be trying to learn more as they prepare to determine the mental competence and sanity of their young client.

Finally, remember who Muhammad is: A forty-two-year-old war veteran with weapons training. And remember the character of the sniper crimes: Expertly executed, with flawless getaways, and no evidence left behind sufficient to find them. (They might still be on the loose had they not initiated contact with law enforcement.)

When adults and teenagers engage in crime, are the teens equally responsible? (One is reminded of the bizarre case in Florida, where two boys have been convicted of killing their father under the influence of an adult male “friend” who admits to having sex with one of the boys and giving them illicit drugs. The adult was acquitted of murder.)

How Malvo Will Be, and How He Should Be, Treated

Here is what will probably happen to Malvo: He will be tried as an adult. His confession will be admitted. He will be foreclosed from a successful diminished capacity or insanity plea. He will be convicted by a jury prejudiced by news accounts of his confession. And he will be executed by the state of Virginia.

Here is what should happen to Malvo: His confession should be suppressed. Before being tried as a juvenile, he should receive the full benefit of Virginia law that, at least in theory, provides for extensive examination of his social, emotional, and cognitive development.

These assessments should be conducted by competent, independent (not court-affiliated) psychologists who understand adolescent cognitive development and who are qualified to assess Malvo’s state of mind both during the crime spree and the interrogation. The jury should hear their testimony.

If convicted, Malvo should be sentenced to spend a large portion–if not all–of his life in prison. There he should be given the opportunities he did not have has a boy. He should receive an education (his former teachers report that he was a bright and good student) and have the opportunity to make a life for himself inside prison walls.

Virtually every adult who ever came into contact with John Lee Malvo failed him. We, in whose name the American “justice” system operates, shouldn’t likewise fail him.

ELAINE CASSEL practices in Virginia and teaches law and developmental psychology. She writes and delivers continuing legal education courses in Internet law, privacy, genetics, and health law and is the author of Criminal Behavior (Allyn & Bacon, 2001), which examines criminal behavior from a developmental perspective. Cassel is a columnist for FindLaw’s Writ.